Thursday, April 30, 2009

Chan tells why he feels compelled to speak out — Picture by Choo Choy May

By Debra Chong

Chan Nyarn Hoi lives in a modest two-storey semi-detached house in a quiet lane near the state stadium in Perak with his wife, a dog and seven large Japanese carp.

At 74 years old and with ruddy smooth cheeks under a full head of snowy white hair, few would connect him to the acerbic, no-nonsense former judge Datuk N.H. Chan, who has in the last couple of months done the unthinkable: fire away missives at judges who have trampled on the Federal Constitution in deciding issues related to the power grab in Perak. His lengthy articles have reminded Malaysians of a time gone by when towering individuals sat on the Bench and simplified the Perak constitutional crisis for the common man.

Still seething over the events that transpired in Perak and decisions of the apex court, he says that if Malaysians are upset with the state of the judiciary and think that the present crop of judges are not up to the mark, they should exercise the power of their vote to change the state of affairs in the country.

Born in Ipoh on March 27, 1935, Chan was admitted to the Bar in 1961. He was a lawyer for almost two decades before becoming a High Court judge and moving to Kuala Lumpur.

He was among the first batch of High Court judges to be elevated to the Court of Appeal, set up in 1994 to act as an intermediate court between the High Court and the apex court.

Chan's first book, “Judging the Judges”, was published in 2007 and is a collection of his articles for the Perak Bar. Only 1,000 copies were published.

His second book, “How to Judge the Judges”, is expected to come out some time in the middle of the year. The final draft has just been sent to the publishers. They wanted him to include the Perak saga as well, but because it is ongoing, he had to draw a line somewhere. He has included some information in the epilogue.

In an exclusive interview, the former judge, who was recommended to the Bench by none other than Sultan Azlan Shah, the Sultan of Perak and a central figure in the present crisis, tells The Malaysian Insider why he feels compelled to speak out.

Q: Unlike many former judges, you have been very vocal in your criticisms against the judiciary. What drives you?

A: In the first place, I am not against the judiciary. I am sure there are some good judges around, only they have not manifested themselves in the present constitutional, should I say, crisis in Perak.

I expected James Foong JCA (as he then was, he is now a Federal Court judge) to do the right thing but he failed to do that. I suppose it takes great courage for a Court of Appeal judge who sat as a winger in the Federal Court to give a dissenting judgment.

Now, back to your question. When I became a judge I had to be true to my calling which is to know that the essence of justice is fair trial and the duty of the judge is to administer it according to law.

Lord Devlin in his book “The Judge”, wrote on page 4: “...impartiality and the appearance of it are the supreme judicial virtues. It is the verdict that matters, and if it is incorrupt, it is acceptable. To be incorrupt it must bear the stamp of a fair trial.”

And at page 85 he said: “The first — ought one to say the whole — duty of the judge is to administer justice according to law.”

Back to page 3, the book said: “What is the function of the judge? Professor Jaffe has a phrase for it — 'the disinterested application of known law' (Jaffe in his book “English and American Judges as Lawmakers”, page 13)”

This means that the judge's only duty is to do justice in the disinterested application of known law. Known law means basic law and the term includes both common law and statute law.

The judge who gives the right judgment but does not appear to be impartial is useless to the judicial process. After that, the judge's whole duty or function is to decide the case according to law on the admissible evidence before him.

And what do you call a judge who does not administer justice according to law? A renegade judge? So now you know why I am so vocal when I admonish the errant judges who did not apply unambiguous law as it stands.

Q: You have been especially blunt in your views over the issues in Perak. Why so?

A: You mean for calling a spade a spade? What do you call a judge who doesn't follow or apply easy to understand and unambiguous statute law as it stands?

Like Article 72(1) of the Federal Constitution which says: “The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court”.

This law applies to all members of the legislative assembly — it does not matter if you are DAP or PKR or MCA or Barisan Nasional or any political party. Even a child could understand the plain meaning of the words. We do not need the Federal Court to interpret (meaning “explain the meaning of”) the words for us. Nor do we need any law professor from Singapore to tell us Malaysians that the courts should have the power of judicial review over what has transpired in Parliament or a Legislative Assembly.

There is separation of powers between the Legislature and the Judiciary of this country. We all know that one can apply to the courts for a judicial review over executive actions. But there is no such thing as judicial review over what transpired in the legislature — if there is such a thing then we can have judicial review over the passing into law of certain Acts of Parliament that we don't like — like the ISA.

A long time ago when I was a High Court judge, I have sentenced many criminals to death without qualms. But personally I am against the death sentence because it is barbaric. But as a judge I must apply the law as it is.

To quote Lord Denning: “It is their [the judges] duty to administer and apply the law of the land. If they should divert it or depart from it — and do so knowingly — they themselves would be guilty of a misuse of power.”

I would never dream of doing such a thing.

Q: Why did you choose to air your views so publicly? I'm trying to understand why you got involved.

A: I'm only an outsider and I don't care. But when everybody is missing the point and all that — and some of them have not even read the Perak Constitution, I thought I better explain why the people are angry.

Q: Why do you think the people are angry?

A: Do you know why the Perakians were up in uproar against the Sultan of Perak?

It's because, as any lawyer will tell you, especially as he was Lord President before, that before you make a decision, you cannot see the parties. If you want to meet any of the parties, both of them must be present. You never do so by seeing one and then making a decision. The moment you do that, to the losing side or to any observer will think you have been influenced. So it's the impression that counts.

They were angry with the Sultan because they can sense it in their bones that it is wrong to make a decision to see the other side first.

Q: Is the Sultan morally wrong or legally wrong?

A: If the Sultan had executive powers to rule, it is legally wrong, so they could apply for judicial review of the Sultan's decision. But I pointed out in my first article he has no executive power to rule because he is not an executive monarch, he is a constitutional monarch. What he did was morally wrong.

Q: You must have seen many things during your time as a judge. What is wrong with Malaysia’s justice system? What can be done to correct it? And what’s stopping the necessary changes from taking place?

A: I don't think there is anything wrong with our judicial system. It is the players that we should be concerned with — if we get the right people on the Bench, that is, those people who are not interested in power — because power corrupts, those fair-minded individuals who would administer justice according to law, then we will have a judiciary to be proud of.

We used to have that at one time. And if the general public think that the present crop of errant judges are not up to the mark, then the remedy is to use the power of the vote to change the present state of things.

At the general election of 1906 the common people of England toppled the Conservative Government of the day because they were unhappy with the decision of the House of Lords in the Taff Vale case which had virtually put an end to trade unions six years earlier.

That case had immense political consequences. At the general election of 1906 the opposition pledged complete immunity for trade unions.

Lord Denning said in his book “Landmarks in the Law”, page 121: “The result of the general election was like an earthquake. ... It was a sweeping victory for the trade unions. Parliament immediately passed the Trade Disputes Act 1906. It is probably the most important Act ever put into the Statute Book. It reversed all the judicial decisions against trade unions. The Taff Vale case was overruled. No trade union could thereafter be sued for damages for any wrongs done by its members. Its funds were unassailable.”

There is a well known Spanish proverb which says, “He who goes with wolves learns to howl.” So that if the electorate don't trust the judges they tend to put the blame on the government who put the judges there.

Q: Many ordinary Malaysians today feel powerless to affect positive changes to the institution of the judiciary because they lack legal knowledge. Do you agree with this view? How do you think they can work to bring about the change they want?

A: I think the real problem is this. In most cases when you read about a court decision in the newspapers, the judgment of the court is expressed in such a way that the average reader will not know if the judge is right. So invariably, we assume that the judge must be right.

I do realise the problem, so I thought I should try to explain the issue in simple language so that everyone will be able to judge for himself whether the judge is doing the right thing or not.

Lord Denning was famous for explaining difficult law in such a way that any lay reader can understand it. Now that they know how to judge the judges by reading my articles, they could, if they thought they have been short-changed by the judges, do the same thing as was done by the electorate in 1906 England. They have the power to change the government of the day by their vote in the next general election.

The opposition, in order to get the people's vote, could pledge to undo all the wrongs done to the community by the judges. They could pledge that if they were given the mandate of the people to form the next government, they would pass an Act of Parliament to overrule such unjust decisions of the Federal Court such as Adorna Properties vs Boonsorm Boonyanit, the Asean Security Mills, PP vs Datuk Seri Anwar Ibrahim as well as all the decisions of the Federal Court pertaining to the Perak constitutional crisis which were not decided according to law — where the court had blatantly refused to apply Article 72 of the Federal Constitution.

They could also pledge to remove the errant judges from office. This is how it could be done.

In “What Next in the Law”, Lord Denning said, page 319: “Parliament is supreme. Every law enacted by Parliament must be obeyed to the letter. No matter how unreasonable or unjust it may be, nevertheless, the judges have no option. They must apply the statute as it stands.”

Yet the errant judges, especially the five in the Federal Court, have refused to apply Article 72 of the Federal Constitution as it stands.

In his book, “The Judiciary in Malaysia” (Asia Pacific Publications Sdn Bhd, 1994) the then Chief Justice of Malaysia Tun Abdul Hamid Omar said, page 88: “... the provisions dealing with the removal of judges in pursuance of an address in Parliament … was modified to provide for a special tribunal to be established for the removal of judges.”

That is incorrect. Actually Article 125(3) of the Federal Constitution only applies to judges of the Federal Court.

At the time of the fracas between the then Lord President Tun Salleh Abbas and Prime Minister Datuk Seri Dr Mahathir Mohamad in 1988, Article 125(3) of the Federal Constitution provides for the removal of judges of the Federal Court on the ground of “misbehaviour or of inability”.

Article 125(3) and (4) reads:

“125(3) If the Prime Minister, or the Lord President after consulting the Prime Minister, represents to the Yang di-Pertuan Agong that a judge of the Federal Court ought to be removed on the ground of misbehaviour or on the ground of inability, from infirmity of body or mind or any other cause, properly to discharge the functions of his office, the Yang di-Pertuan Agong shall appoint a tribunal in accordance with Clause (4) and refer the representation to it; and may on the recommendation of the tribunal remove the judge from office.

“125(4) The said tribunal shall consist of not less than 5 persons who hold or have held office as a judge of the Federal Court, the Court of Appeal or a High Court or, if it appears to the Yang di-Pertuan Agong expedient to make such appointment, persons who hold or have held equivalent office in any other part of the Commonwealth, and shall be presided over by the member first in the following order, namely, the Chief Justice of the Federal Court, the President and the Chief Judges according to their precedence among themselves, and other members according to the order of their appointment to an office qualifying them for membership (the older coming before the younger of two members with appointments of the same date).”

The book “The Judiciary in Malaysia” said — this part is significant so do pay special attention to it — page 89: “Until the recent amendment in 1994, the grounds for the removal of a judge was 'misbehaviour or of inability', The Constitution (Amendment) Act 1994, however, substituted for the word 'misbehaviour', the words 'any breach of any provision of the code of ethics prescribed under Clause 3A...'. The effect of this amendment is that, besides the inability, either from infirmity of body or mind, or any other cause, properly to discharge the functions of his office, a judge may be removed if he has breached the code of ethics prescribed for judges.

“Article 125(3A) provides that the code of ethics shall be observed by every judge, be it, the judge of the Federal Court, the Court of Appeal or the High Court.”

This is what Section 2 of the Judges' Code of Ethics 1994 says:

“2(1) This Code of Ethics shall apply to a judge throughout the period of his service.

“2(2) The breach of any provision of this Code of Ethics may constitute a ground for the removal of a judge from office.”

So now we all know that any serving judge could be removed from office for a breach of any provision of the Judges' Code of Ethics 1994.

Section 3(1)(d) is the provision in the Code of Ethics to apply against the errant judges. It reads: A judge shall not conduct himself dishonestly or in such a manner as to bring the Judiciary into disrepute or to bring discredit thereto”.

I think the words in Section 3(1)(d) are clear enough — we all know what they mean. So that if a judge brings the judiciary into disrepute or discredit, as the errant judges have done by not administering justice according to law, they could be removed from office under this provision. It's a bit harsh, but it can be done - The Malaysian Insider.

Wednesday, April 29, 2009

The Federal Court today sent back the 'MB versus MB' case to the Kuala Lumpur High Court for the second time, after dismissing Perak Menteri Besar Zambry Abd Kadir's application for a fastrack hearing to consider constitutional issues.

In his ruling, Justice Alauddin Mohd Sheriff said this was an unanimous decision by the five- member panel.

"We upheld the preliminary objection. We agree that disputed facts exist between the affidavits (filed by Mohd Nizar and the state legal advisor Ahmad Kamal Md Shahid on their meeting with Sultan Azlan Shah). Hence, we will remit back the case to the High Court for the case to be heard.

"No order is made as to costs," he said.

When asked further by Sulaiman, Alauddin said the court decided this matter based on the preliminary objection and not the merits to Zambry's application.

The facts being disputed was whether Mohd Nizar had told the Sultan of Perak that he no longer commanded the confidence of the state legislative assembly and asked for its dissolution based on Article 16 (6) of the Perak constitution as stated in Ahmad Kamal's affidavit.

Mohd Nizar denied such matters in his conversation with the ruler. He stated in his affidavit that his meeting with the ruler was to seek a dissolution following the political deadlock i.e. 28 Pakatan Rakyat assemblypersons and 28 BN assemblypersons, following the alleged resignation of the three assemblypersons.

The Kuala Lumpur case has been fixed for hearing on May 4, to hear an application by Mohd Nizar to cross-examine Ahmad Kamal.

On March 23, the apex court had for the first time set aside the Court of Appeal's decision and returned the constitutional questions to determine the legitimacy of the Perak menteri besar back to the Kuala Lumpur High Court.

Zambry's application

Zambry had on April 21, submitted a notice of motion to the Federal Court, where he sought a quick resolution of the political impasse in Perak, by taking the matter directly to the apex court for it to declare him the rightful menteri besar.

Naming Mohd Nizar as respondent, Zambry posed several constitutional questions for the interpretation of the apex court based on Article 63 of the Perak Constitution to interpret:

(a) Whether Sultan Azlan Shah had the right not to accede to Mohd Nizar's request for the dissolution of the Perak assembly, when he (Mohd Nizar) ceased to command the confidence of the majority of the assembly;

(b) When the sultan declined to accede to Mohd Nizar's request, whether it was tantamount to the resignations of Mohd Nizar and his state exco members; and

(c) Whether when Mohd Nizar refused to tender his resignation, the sultan had the right to appoint Zambry pursuant to Article 16(2) of the Perak constitution after the sultan was satisfied that he (Zambry) commanded the confidence of the assembly.

Earlier in the day, the court also disallowed Mohd Nizar's application for a nine-member panel to resolve the issues brought by Zambry. This comes after a five-member panel chaired by Alauddin appeared before the court.

On the preliminary objection, Sulaiman said the apex court should have decided on the principles of res judicata (matter already judged) following the March 23 decision to remit the case to the Kuala Lumpur High Court.

Sulaiman's objection

The senior counsel submitted that although the application made by the Attorney-General's Chambers was based on Section 84 of the Courts of Judicature Act, Article 63 of the Perak constitution was also referred.

"Furthermore there is also questions on the disputed facts between Mohd Nizar's affidavit and that by Ahmad Kamal. This matter has yet to be heard and the apex court cannot entertain Zambry's application," he said.

Senior lawyer Cecil Abraham for Zambry argued that on March 23, questions were solely on Section 84 of the CJA.

Furthermore, Abraham said the apex court could hear the application as it would not involve the Kuala Lumpur High Court matter, and would be based on the Sultan of Perak's decree (letter of appointment) to Zambry.

Meanwhile, Attorney-General Abdul Gani Patail who was present at today's proceedings commented that the chambers respected the decision.

"We have successfully applied to be an intervener and would assist the court," he said - Malaysiakini.

Khalid filed the suit at the Kuala Lumpur High Court registry at 2.45pm.

The Bandar Tun Razak MP claimed that Ahmad Said and the MACC had issued defamatory statements which resulted in the New Straits Times report titled 'Khalid in hot water over car and cows'.

The menteri besar claimed that the statements meant that he was dishonest in his private and official capacity, guilty of corrupt practices, untrustworthy and an unfit politician.

It also meant that he is unfit to hold public office, unprincipled, committed a criminal offence which is punishable by imprisonment, unethical and abused his position.

Khalid also claimed that the defendants had 'crossed the lines of common decency' by making such an allegation.

He contended that the claims by Ahmad Said were baseless, reckless and made with gross negligence to tarnish his reputation.

He claimed that the MACC chief had acted beyond his powers to make such derogatory statements.

Khalid alleged that the statements were a distortion of the truth, made out of malice and in bad faith, and resulted in public hatred, ridicule, scorn and alienation. It has also affected his public image.

Reputation has been tarnished

He also claimed that as a person holding the public office as menteri besar, his reputation had been tarnished.

Following this, Khalid said he suffered distress, anxiety and embarrassment therefore entitling him for exemplary and aggravated damages.

The Selangor menteri besar also claimed that Ahmad Said and MACC should have known that the commission only possessed investigatory powers and the attorney-general has the powers to prosecute.

Khalid also claimed that the statement made by deputy chief commissioner Abu Kasim Mohamed to justify his superior was wrong and misconceived.

He also claimed that the defendants had failed to respond to his lawyers’ demands for an explanation and a demand for a retraction made on two occasions on Feb 26 and March 19.

He is seeking compensatory and aggravated damages, along with exemplary, general and special damages.

Khalid is also seeking an injunction to restrain the defendants from repeating, uttering, speaking and writing the alleged defamatory words - Malaysiakini.

“This is a key meeting for us. We hope to settle all our major differences once and for all,” Thanenthiran told Malaysian Insider.

“We have to chart a new course for Hindraf or it will become irrelevant,” he said.

The key issue is whether to transform Hindraf into a full fledged political party — a line pushed by Thanenthiran who feels Hindraf has been taken for a ride by opposition political parties like PKR and especially the DAP.

“If we want to remain credible and fight for Indian rights the best option is to form into a political party and get the best from anybody for the Indians,” Thanenthiran said.

“This is the best option open to us,” he said adding by allowing others to ride on it Hindraf had only gained “peanuts.”

However Waythamoorthy told The Malaysian Insider that Hindraf must remain apolitical and reorganise into a powerful and independent pressure group to gain benefits.

“We are friendly to opposition political ties but beyond that we are apolitical,” he said. “I will push for this case at the meeting.”

He is keeping his options open however and is also willing to open a dialogue with the Barisan Nasional especially with prime minister Datuk Seri Najib Razak to resolve Indian plight.

He is keen to meet Najib put forward to him the movement’s 18-point demand including the need to convert all 543 Tamil schools in the country into fully-aided schools. Currently half are partially-aided leaving them in ramshackle conditions.

Kapar MP and other PKR leaders however will urge Hindraf to stay as a political pressure group and not transform into a political party.

“There is simply no place for another Indian based political party in the country,” he told The Malaysian Insider. “PKR is the vehicle for all Malaysians… we are the future.”

He said he and others would strongly oppose any arguments to form another Indian political party.

“We are already heavily fragmented and another Indian political party is meaningless and will fragment the community even more,” he said urging Indians to join PKR - The Malaysian Insider.

Pakatan Rakyat (PR) will set up shadow cabinet committees instead of the customary practice in Britain of matching one opposition lawmaker to pass criticism and offer alternative policies to one specific government ministry.

The Malaysian Insider understands that instead of appointing individual shadow ministers, PR will have committees of between eight and 15 MPs monitoring the Barisan Nasional (BN) administration. This was decided at a senior leadership meeting during the weekend.

By forming the committees, PR appears to be avoiding the sensitive issue of announcing who among their leaders would be appointed to key positions in the event they ever take federal power.

While supporters of a two-party system may applaud this step, they will also have to accept that it may not look like what they had expected and that raises questions over PR's preparedness to take federal power.

The Malaysian Insider understands each committee will be led by three co-chairs representing PKR, PAS and DAP and one MP can sit in up to three committees of his or her choice.

When parliament is in session, the speaker will be informed that PR would like the shadow committee members to be given priority to speak on their respective topics which will afford them an opportunity to shine in the subject matter.

However, the committee concept also raises questions over the PR's readiness to be an alternative to the current federal government.

James Chin, a political analyst at Monash University Malaysia says the effort to shadow the government is worthwhile but sees drawbacks to the committee concept.

"A shadow cabinet is one way to tell people that you are a government in waiting and that you have got the people to take over the various ministries ... (but) you can't appoint a committee to be a minister," he told The Malaysian Insider.

"If they want to do it, they should do it one-to-one, not by committee. That is the proper way."

He adds that a cabinet committee will likely function more as a review committee that merely reviews the government's actions.

PR's shadow committee members will unfortunately also have to struggle with many constraints its counterparts in BN do not. They will not have government allocations for research budgets or staff, nor will they have the resources of the civil service at their disposal.

It is also not an officially recognised position, unlike in some countries. It is understood that the lack of resources is part of the reason for the formation of a committee as it will allow the workload to be shared.

While not ideal, the shadow committee will give the MPs a chance to shine in parliament although whether they are up to the task of writing policy papers will remain to be seen..

Selangor Speaker Teng Chang Khim believes that PR does not need a shadow cabinet to prove it is a viable alternative to BN.

The four-term assemblyman said the Selangor executive councillors were all doing well without the benefit of being shadow councillors while in the opposition.

“In fact, I can say they are doing even better than the previous administration,” he said.

Teng, who had previously served as opposition leader for two terms, said a shadow cabinet was just one of the ways, but not necessarily the best way, for the opposition to keep the Government in check.

The shadow committee may lead to unnecessary controversy, he added, because it will allow Barisan MPs to question the committees on issues such as the Islamic state or hudud.

Teng said while the coalition had reached a consensus that party policies and Pakatan policies are two different issues, he foresees that Barisan Nasional will view such differences as inconsistencies and will exploit them - The Malaysian Insider.

Datuk Seri Mohammad Nizar Jamaluddin today filed a notice of motion to obtain a court declaration that Article 63 of the Perak State Constitution null and void for being in conflict with the Federal Constitution.

Nizar, 52, filed the notice through legal firm Messrs Leong & Tan at the Federal Court Registry here and named Government of Perak, Government of Malaysia and Datuk Dr Zambry Abdul Kadir as respondents.

In the application, he said the 1996 amendment to Article 63 which gave jurisdiction to the Federal Court to hear constitutional issues regarding the Perak political crisis was in conflict with Article 4(3) and 4(4) of the Federal Constitution.

He said the State Legislative Assembly did not have the authority to make the amendment.

"Any amendment to Article 63 after Independence is supposed to be made through Article 162(1) of the Federal Constitution because the Federal Court's jurisdiction can only be given by Parliament, not the State Legislative Assembly," he said.

He also requested for the proceedings to determine who is the legitimate Perak Menteri Besar, scheduled to be held at the Federal Court tomorrow, to be deferred pending the disposal of this application - Bernama

Perak Mentri Besar Datuk Seri Zambry Abdul Kadir should call off the Perak State Assembly meeting set for May 7 as it is improperly convened, DAP veteran Lim Kit Siang said today.

"Zambry should call off the State Assembly meeting as it is improperly convened against Najib's public stand that the Perak Assembly cannot meet until the court has ruled that BN is the legal government in Perak," said Lim, pointing out that the court has yet to decide on the matter.

"As the court has not made any decision that the BN is the legal government in Perak, the May 7 State Assembly should be called off until there is a judicial decision," he said.

Lim also condemned the sudden pressure that Zambry was placing on the Federal Court to come to a speedy decision in his favour.

"On 21 April, Zambry filed an urgent application to the Federal Court for a declaration that he is the lawful Mentri Besar, and he now expects such a declaration to be made by the Federal Court on April 28. For two and a half months, Zambry did not move the Federal Court for such a declaration," said Lim.

"Does Zambry think he belongs to a special category of persons who is privileged to short circuit the whole process of the administration of justice?" he asked.

"Even with such a Federal Court decision on Tuesday, Zambry can only properly convene his first State Assembly meeting with the requisite notice of 14 days to all State Assembly members- which means the earliest Zambry can convene a proper Perak State Assembly meeting will be May 13," said Lim - theSun.

Saturday, April 25, 2009

THE media reports that the Cabinet has decided that children of marriages where one spouse subsequently embraces Islam would remain in the faith that the parents had agreed on at the time of marriage.

The Cabinet has also appeared to decide that the civil courts are to dissolve such marriages.

These decisions are welcome ones.

They indicate willingness on the part of the administration to deal with issues that have for some time now been studiously avoided, a state of affairs that had prompted the establishment of the coalition of NGOs calling itself “Article 11” and its “Equal Protection For All” campaign in 2006.

The decisions also indicate the policy position of the current administration, one that on its face appears to adhere to the constitutional guarantees of equality and the right of parents to choose the religion of their children.

The Constitution guarantees the right of a parent to decide the religious instruction of a minor child. The Constitution provides that words in the singular are to be understood to include the plural, parent being “parents”.

By virtue of this and the guarantee against discrimination on grounds of gender, it is clear that the intention was to vest guardianship rights in both parents.

This is reinforced by Federal law. I am, however, uncertain as to how this policy position is to translate into practice as the Cabinet has little or no direct power in this regard. Religion is a matter for the State and not the Federal government; each State has exclusive authority over the administration of Islam within the boundaries of that State.

This would include matters of conversion of children and the jurisdiction of the syariah courts, both of which are matters in respect of which the State legislative assembly has the competence to enact laws.

Though the Constitution itself lends support to the policy position of the Cabinet, and as such could be invoked to reign in those State agencies involved in these matters, the question of whether there has been a transgressing of limits is one for the courts.

The courts have, however, in recent years handed down decision after decision that have undermined the constitutional framework and entrenched as principle the very matters that the Cabinet now wishes to address.

In 2004, the High Court in Shamala Sathiyaseelan ruled that the converting husband had a right to convert the children into Islam without the consent of the wife.

The court also ruled that it had no jurisdiction to entertain the wife’s application to challenge the legitimacy of the conversion.

Accepting that the wife was without recourse for not being able to move the syariah court as a non-Muslim, the court counseled her to seek the assistance of the Majlis Agama.

This is a scenario that the majority decision of the Federal Court reinforced in the Lina Joy case in 2007. In the same vein, a majority bench of the Federal Court in Subashini Rajasingam concluded in 2008 that either parent could convert a child of the marriage into Islam.

It ignored the non-discrimination guarantee as well as the interpretation provision for words in the singular and focused on the word “parent”, interpreting it to mean “parent” in the singular.

The majority also decided that the Muslim party was free to commence proceedings in the syariah court even though the non-Muslim party was entitled to seek dissolution and maintenance and custody orders in the High Court.

These decisions and others like them stand in the way of the Cabinet implementing its policy position.

It is ironic that the decisions noted above were largely the result of ill-conceived and shortsighted positions taken by the Attorney- General’s Chambers on these matters, positions that sought to denude the High Court of jurisdiction to allow for the preservation of an unjust status quo.

To move forward, the Cabinet must therefore take the bull by the horns. I assume that the Cabinet made its decisions based on advice from the Attorney-General.

It is therefore imperative that the Attorney- General articulates his revised position on these issues in the courts as soon as possible.

The Shamala case comes before the Court of Appeal on Monday and he should apply to intervene to make the necessary points.

Being matters of great constitutional significance that are clearly in the public interest, they warrant his involvement - The Malay Mail.

● Malik Imtiaz Sarwar is president of the National Human Rights Society (HAKAM) and blogs as ‘Disquiet’ at www.malikimtiaz.blogspot.com.

The Archbishop of Kuala Lumpur was given leave by the High Court today to quash the Home Ministry's decision prohibiting the use of the word "Allah" in the Herald Catholic Weekly.

Archbishop Murphy Nicholas Xavier Pakiam was also granted leave to apply for nine declarations, including to declare that the decision of Home Ministry and the government of Malaysia was illegal and ultra vires the Printing Presses and Publications Act 1984.

According to Bernama, his counsel, S Selvarajah, told reporters that Justice Lau Bee Lan granted the leave under Order 53 of the Rules of the High Court in chambers.

Senior federal counsel Suzana Atan, for the ministry and government, did not object to the application.

Lau also fixed May 28 to hear the application for a stay of the Home Ministry's decision.

On Feb 16, this year, Murphy, as publisher of the Herald, filed for a judicial review to quash the decision of the respondents dated Jan 7, 2009 that the applicant's publication permit for the period Jan 1, 2009 until Dec 31, 2009, is subject to the condition that he be prohibited from using the word "Allah" in the Herald.

Seven declarations

The other seven declarations sought are:

1. That the applicant has the constitutional right to use the word "Allah" in the Herald in the exercise of his right that other religions other than Islam may be practised in peace.

2. That Article 3(1) of the Federal Constitution does not empower the respondents to prohibit the applicant from using the word "Allah" in the Herald.

3. That the applicant has the constitutional right to use the word "Allah" in the weekly in the exercise of his right to freedom of speech and expression.

4. That the applicant has the constitutional right to use the word "Allah" in the Herald in the exercise of his freedom of religion which includes the right to manage its own religious affairs.

5. That the applicant has the constitutional right to use the word "Allah" in the Herald in the exercise his right in respect of education of the Catholic congregation in the Christian religion.

6. That the Printing Presses and Publications Act 1984 does not authorise the respondents to prohibit the applicant from using the word "Allah" in the Herald and

7. That the word "Allah" is not exclusive to the religion of Islam - Malaysiakini.

Friday, April 24, 2009

When a judge is plainly wrong, especially when he claims to interpret the obvious, it is not wrong for any right thinking member of the public to criticise him.

In New Sunday Times, there appears this astonishing remark (because it is erroneous in law) which was attributed to a minister in the Prime Minister's Department.

According to the report, Mohamed Nazri Abdul Aziz (left) has hit out at Perak DAP chief Ngeh Koo Ham for questioning a Federal Court ruling pertaining to Perak.

Nazri said Ngeh should not question the court's decision that Perak state assembly speaker V Sivakumar did not have the power to suspend Menteri Besar Zambry Abdul Kadir and six BN state executive council members from attending the state assembly sittings.

“‘There was no question of the judiciary interfering in the legislature as claimed by Ngeh as the courts were the best place to seek interpretation of the constitution or law,’ he told reporters,” said the report.

“Nazri said the law did not intend to equip a speaker of a legislative assembly with unrestricted authority.”

Everyone knows that Ngeh (right) was talking about Article 72 (1) of the Federal Constitution which states, “The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court.”

But what the minister was saying is that "the courts were the best place to seek interpretation of the constitution".

Now I ask Malaysiakini readers, do you, as a member of the general public, need a judge to interpret Article 72 (1)?

However, when the judges were asked to interpret clause 1 of Article 72, as we have recently observed, they have blatantly refused to apply the constitutional provision as it stands. We know that the words mean what they say.

According to the dictionary, the word “interpret” means “explain the meaning of”. I don't think we need the Federal Court or any court to explain the meaning of Article 72 to us - the meaning is plain enough for ordinary Malaysians to understand.

‘It means what I choose it to mean’

No one in his right senses would attempt to interpret the obvious meaning of the words in Article 72 (1), unless he wants to say the words mean something else as Humpty Dumpty did in Lewis Carrol’s ‘Through the Looking Glass’.

"When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean - neither more nor less."

"The question is," said Alice, "whether you can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be master - that's all."

Alice was too much puzzled to say anything.

Then, like Humpty Dumpty, Nazri made this amazingly naive statement: "The law - meaning Article 72 (1) - did not intend to equip a speaker of a legislative assembly with unrestricted authority."

But that was not the point of what Ngeh said. So what if the speaker was wrong on what he did or said or ordered in the legislative assembly?

The supreme law of the land says that "the validity of any proceeedings in the Legislative Assembly of any State shall not be questioned in any court".

This could only mean that all differences which occured in the legislative assembly could only be resolved by the assembly, within the assembly itself.

The validity of any proceedings in the assembly is beyond the reach of the courts - so said the Constitution of Malaysia.

The "law" does not mean, as the minister wanted it to mean, that it "did not intend to equip a speaker of a legislative assembly with unrestricted authority".

Like Alice, the general public were too much puzzled by such a naive remark.

Judges do not fear criticism

Anyway, why should a judge be afraid of criticism of his judgment if he has done nothing wrong and he is only doing his duty to administer justice according to law?

Judges do not fear criticism, nor do they resent it.

In the Privy Council case of Ambard v Attorney-General for Trinidad and Tobago, this was what

Lord Atkin said:

“The path of criticism is a public way: the wrong-headed are permitted to err therein, provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune.

“Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men."

NH CHAN is a former Court of Appeal judge famous for his ‘All is not well in the House of Denmark’ comment regarding judicial corruption. He was then referring to High Court’s commercial division which was located in Wisma Denmark, Kuala Lumpur. The quote is based on Shakespeare’s ‘Something is rotten in the state of Denmark’. He now lives in Ipoh - Malaysiakini.

Justice Datuk Abdul Aziz Abd Rahim, in his oral decision, said the AG, as the guardian of the public interest, should be allowed to intervene as the issue was of public importance and public interest.

He also said that the issue involved interpretation of Article 16 of the Perak Constitution which is similar to Article 43 of the Federal Constitution.

“Of course the court can invite the AG as a friend of court, but after considering the main issue here, it is my view to allow the AG to intervene and to help the court, more so when the issue here is a novel one.

One mentri besar is appointed and the other one has not resigned,” said Abdul Aziz who is the third judge to hear the application after the Federal Court sent it back to the High Court.

The first judge was Judicial Commissioner Mohamad Ariff Md Yusof who recused himself while the second judge, Lau Bee Lan, had referred the matter to the Federal Court for determination of constitutional isssues.

Earlier, senior federal counsel Datuk Kamaluddin Md Said submitted that the AG should be allowed to intervene as the application for judicial review required the interpretation of the Perak Constitution which would also affect other state constitutions with similar provisions.

Sulaiman Abdullah, counsel for Mohammad Nizar, objected on the ground that the AG had failed to show any necessity for him to intervene in the proceeding.

“This is a Perak matter. The actual situation here is that the applicant (Mohammad Nizar) and the respondent (Zambry) are both claiming to be the mentri besar. There is no direct involvement of the federal government in this issue.

The judge also fixed May 4 to hear the application by Mohammad Nizar to cross-examine Perak legal advisor Datuk Kamal Md Shahid on the statement which he claimed was inconsistent with Mohammad Nizar’s statement in the affidavit filed in the suit.

OBJECTION TO ZAMBRY APPLICATION

Late yesterday, Nizar filed an objection to Zambry’s application for the Federal Court to declare him the legitimate mentri besar.

Nizar made the objection through an affidavit in reply filed at the court’s registry here through legal firm Messrs Leong & Tan.

In the affidavit, Nizar said among others that the questions suggested by Zambry for the court to decide could not solve the political impasse.

He said the issues, whether the post of mentri besar could and/or had been vacated in the situation where the mentri besar wished, and had advised for the dissolution of the State Legislative Assembly under several circumstances including the absence of a motion of no confidence being passed and adopted in and by the Assembly against the mentri besar, could still not be answered.

He said, the questions suggested by Zambry for the court to decide were irrelevant to his judicial review application and it would not resolve the contentious issues in the application.

Nizar is also challenging the validity of Article 63 of the Perak State Constitution which was used to refer the matter to the Federal Court.

He said the Federal Court did not have jurisdiction to hear the Article 63 application because the term “Supreme Court” in Article 63 did not refer to the apex court in the Federation of Malay States because the apex court at that time was the Privy Council.

Nizar said he did not dispute the prerogative of the Sultan of Perak which was enshrined in Article 16(2) and/or Article 36(2). He said, the Sultan of Perak’s prerogative did not arise at all in his judicial review application.

Zambry filed the application to refer three legal questions regarding the interpretation of Article 16(2) and 16(6) according to Article 63 of the Perak State Constitution.

In his notice of motion, Zambry said that if the Federal Court decided in his favour regarding the three questions, the court should declare that on Feb 6, 2009, he had been properly appointed as Perak Mentri Besar.

The Federal Court has fixed Tuesday to hear the notice of motion application.

Nizar filed the judicial review application at the High Court to challenge Zambry's appointment as the legitimate mentri besar.

Nizar argued that according to the Perak State Constitution, he was the legitimate mentri besar because he had advised the Sultan to dissolve the State Legislative Assembly, did not resign and no motion of no confidence had been passed against him in the Assembly.

The High Court will hear the judicial review application on May 5 and 6 - Bernama.

Thursday, April 23, 2009

After two ISA detentions, I do not plan to allow them to get me so easily the third time around. I also refuse to face treason charges that will result in me being sent to the gallows. I love my life and wish to remain alive a few years longer if possible.

I wish to explain why I am not going to be present in court today, 23rd April 2009. Firstly, it involves my recent dispute with the Selangor Palace. This dispute was due to my open letter to the Perak Menteri Besar, Datuk Seri Nizar Jamaluddin, which I wrote on 2nd March 2009 in response to the ongoing Perak Constitutional Crisis. My family said I had acted in a treasonous manner and they wanted me to issue a public apology to the Sultan of Perak.

I refused to comply with my family’s demand and instead wrote two articles condemning the Perak Palace for violating the Federal Constitution of Malaysia and for ignoring the wishes of the rakyat. My opinion is no different from that of N.H. Chan, the former Court of Appeal judge.

The Sultan of Selangor was very angry and that triggered a conflict between our two families. My family told me I had brought shame to the family name and they demanded that I attend a family meeting to discuss the matter. However, I did not attend that family meeting and this aggravated the situation.

My family then gave me an ultimatum. I was to either make that public apology or else my family would insert an advertisement in the mainstream newspapers practically distancing itself from me, which could be interpreted as disowning me. My response to that was, and in accordance with the normal action to be taken against a member of the kerabat who durhaka, I went into exile outside Selangor. As a matter of fact, I even missed two recent family funerals, as I could not and would not step foot in Selangor ever again.

It has to be noted that this has always been the punishment for any member of the Selangor Royal Family who is considered durhaka since the beginning of the Selangor Sultanate more than 250 years ago. My grandfather, Sultan Musa, was in fact subjected to that same punishment and it is the only punishment befitting a member of the Selangor Royal Family who has courted the displeasure of the Palace.

This means, in short, I can no longer attend the court hearing as the same is heard in Petaling Jaya, which is invariably within the state of Selangor.

The second reason is as follows:

In September 2008, I was detained under the Internal Security Act for what I was alleged to have written regarding the Altantuya murder and the alleged links to those who walk in the corridors of power. However, I am already facing trial on sedition and criminal defamation charges in this court as well as in the Kuala Lumpur court.

Now, my ISA detention in September 2008 was for the same crime as what I have been charged in this court (sedition) and in the Kuala Lumpur court (criminal defamation). This means I am being punished twice for the same crime and the law does not provide for one to be punished twice for the same crime.

No doubt, in November 2008, the Shah Alam court ruled my detention illegal and subsequently ordered my release. Nevertheless, the government is appealing this decision, giving a clear indication that it wants me back in Kamunting whereby I will face punishment without trial on top of the two trials I am being made to face — which, as I said, are for those same crimes.

The events of late do not give me any confidence that I will get a fair trial. Even if the Petaling Jaya court acquits me, they can still appeal the decision of the court like what they are doing with the Shah Alam court’s decision to free me from ISA detention. And the manner the Federal Court conducted itself during the recent ISA appeal hearing is very troubling indeed and borders on unprofessional conduct.

Finally, my open letter to Nizar Jamaluddin has been classified as treason and the government wants to charge me for treason. The fact that no such law exists will not stop them as they can use the "waging war against the King" law that they used against some of the Al Maunah members, which resulted in them being hanged in the Sungai Buloh Prison in October 2006.

Many of my friends have spotted police vehicles parked outside their house. Others have noticed police officers loitering in front of their residence while some have been summoned to Bukit Aman for interrogation. The police want them to reveal where I am currently residing.

Why are the police looking for me? Two months ago, the Federal Court was in a hurry to hear the appeal against my release from ISA detention. After impatiently rejecting all our applications and refusing to allow us time to file the necessary papers, the court suddenly went cold and nothing was heard from it since.

This got me very suspicious. I did some checking and have reason to believe that a new detention order has been issued and that is why the police are looking for me. If I were to turn up in court today I would never be allowed to leave. The police would immediately detain me and send me to Kamunting and this time I shall not be so fortunate as to see freedom in two months like in the last two occasions.

After two ISA detentions, I do not plan to allow them to get me so easily the third time around. I also refuse to face treason charges that will result in me being sent to the gallows. I love my life and wish to remain alive a few years longer if possible.

Those are the reasons I am not in court today. I shall, however, attend the court hearing when the situation permits, i.e., I am no longer to be charged for treason and I get an assurance from the powers-that-be that the government’s appeal against my ISA release is withdrawn forthwith and that no new detention order has been issued. After all, if the Razak Baginda acquittal was not appealed upon, why am I being treated differently? — Malaysia Today

The government moved today to soothe uneasiness over Islamic conversion of minors when it decided that children should be raised in the faith of their parents while they were married even if one spouse becomes a Muslim.

The Cabinet decided this yesterday amid simmering tension over a case of three Indian children converted to Islam by their father without the mother’s consent.

K. Patmanathan, 40, had converted to Islam without the knowledge of his wife, Indira Ghandi, who claimed her husband also converted their children — aged one, 11 and 12 years — without her consent.

Indira said she was now living in fear of losing her children as her husband was seeking custody through the Syariah Court.

There has been an increase in the number of cases in which Islamic conversions have been used as a tool to gain custody of children in divorces among non-Muslims couples - The Malaysian Insider.

Suspended Puchong member of parliament Gobind Singh will be filing a suit tomorrow against Dewan Rakyat speaker Pandikar Amin Mulia over his 12-month suspension.

The suit will be filed at the Kuala Lumpur High Court, said Gobind's father Karpal Singh.

The legal action follows a decision last week by the Federal Court in allowing a challenge by BN's Perak Menteri Besar Zambry Abd Kadir and his exco members against their suspension from the Perak assembly by assembly speaker.

"The Perak case has opened up a precedent for the matter (suspension) to be taken to the Federal Court," said Karpal, also the Bukit Gelugor member of parliament.

Gobind's action, when filed tomorrow, will be the first of its kind taken against a decision made by a Dewan Rakyat speaker.

Last month, Gobind was suspended without any allowances and benefits following his outburst in the House against Prime Minister Najib Abdul Razak.

The debutant parliamentarian had allegedly linked Najib with the murder of Mongolian Altantuya Shaariibuu, and called him a "murderer" in the process.

The decision by the Federal Court last week was unprecedented as it allowed the judiciary to get involved in a decision-making process of the legislature.

Perak speaker V Sivakumar had suspended Zambry for 18 months and his six exco members for 12 months for causing contempt to the House by assuming the post of menteri besar and exco members.

Will the court rule the same?

In backing Gobind's move to file the judicial review, DAP leader Lim Kit Siang said the one-year suspension was a "blatant case of abuse" of Barisan Nasional majority in Parliament.

He added that Gobind was subjected to double jeopardy with a very harsh second punishment although he had earlier been punished by the deputy speaker Ronald Kiandee with a one-day suspension.

He also said that DAP had originally not planned to subject Pandikar's decision to a court review as "we hold to the doctrine of separation of powers among the executive, legislature and judiciary".

He said the party believed in upholding the federal constitution which clearly stated that the validity of any proceedings in Parliament or any committee shall not be questioned in any court.

However he said all that changed with the Federal Court decision last week on the Perak matter.

"The Federal Court has created a precedent which would justify the legal challenge of the unjust and oppressive one-year suspension of Gobind as MP without parliamentary pay and privileges.

"Or is the Federal Court going to be guilty of selective and discriminatory justice?" he asked in a statement - Malaysiakini.

DAP chairman Karpal Singh, charged with making seditious statements against the Sultan of Perak, today claimed the prosecution’s case against him is flawed and should be thrown out of court.

The wheelchair-bound veteran lawyer, who represented himself in the High Court today, denied the charge that he had committed sedition against Sultan Azlan Shah during a press conference here in early February over the ruler’s actions at the height of the Perak crisis.

Citing Section 5 of the Sedition Act 1948, Karpal argued the prosecution had failed to get a proper written consent, a document that is required under the law in order to try him for sedition.

He said the written consent provided by the Attorney-General Tan Sri Abdul Gani Patail is “defective” because it did not detail the specific words he had allegedly said in his press conference which are allegedly seditious in nature.

Karpal also said the written consent should have detailed the exact nature of the sedition against him, and pointed out in his case it referred to a provision in Section 3(1)(a) which states: “to bring into hatred or contempt or to excite disaffection against any Ruler or against any government”.

However, the prosecution, led by Deputy Public Prosecutor Datuk Kamaluddin Md Said, argued the law did not require the specifics of the seditious words to be laid out in the written consent.

“This is just a consent to prosecute. How can more particulars be written in the consent than in the charge? This is absurd,” he pointed out.

But Karpal was adamant. Using the analogy of the chicken and egg situation, where the written consent was the egg and the charge the chicken, he stressed that the written consent is the prerequisite to the charge and must come first.

“It didn’t say what the seditious words were. They should have done it first before they go to the charge,” Karpal told reporters later.

“The idea of Section 5 is not to have frivolous prosecution,” the Bukit Gelugor MP said.

“Under Section 32(a) of the Sedition Act, it is not a seditious tendency if I point out to the Ruler he is mistaken. I’m telling him, I think you’re wrong because it’s unconstitutional,” he added.

He noted the Attorney General must think and act thoroughly before choosing to bring such serious charges against a person.

Karpal, who is presently out on a bail of RM2,000, wants the court to discharge the case against him.

But as he also pointed out to reporters, the matter can be what he called a “DNA” or “discharge not amounting to an acquittal”.

“They can charge me again if they want,” he said.

High Court judicial commissioner, Azman Abdullah, has fixed next Wednesday to announce his decision.

Karpal was charged with sedition on March 17 for saying Datuk Seri Nizar Jamaluddin's removal as Perak mentri besar by Sultan Azlan Shah could be questioned in a court of law.

The veteran lawyer-politician was charged at the Sessions Court here before Judge Mohamad Sekeri Mamat under Section 4(1)(b) of the Sedition Act 1946.

Karpal is further accused of several other seditious statements related to the entire Perak constitutional crisis which began two months ago.

He is accused of committing the crime during a press conference at his law firm here on February 6.

A partial transcript of the press conference, which formed the basis for the charge, was read out in open court.

Among the underlined statements, supposedly seditious, are:

“With that ruling of the federal court which has stood the test of time for 32 years beyond a pale of a doubt, the Sultan of Perak has contravened Article 16(6) of the Constitutions of the State of Perak,” referring to a 1977 Federal Court decision that the King had acted beyond his authority in confirming three detention orders under the Emergency Ordinance.

“Clearly the Sultan of Perak cannot invoke his powers under Article 16(1) which states [His Royal Highness shall appoint an Executive Council] to appoint a Barisan Nasional Executive Council with a new Menteri Besar and a new government. The Government of a Menteri Besar Dato’ Haji Nizar bin Jamaluddin still had constitutional supremacy and legitimacy. The actions of the Sultan of Perak are clearly, premature.”

Karpal pleaded not guilty.

This is Karpal’s second sedition charge. His first was in January 2000, for supposedly making seditious statements on arsenic poisoning during the corruption trial of sacked deputy prime minister Datuk Seri Anwar Ibrahim.

But the prosecution later dropped the charge against him and he walked out a free man.

If found guilty this time, Karpal can be fined up to RM5,000 and could spend up to three years behind bars - The Malaysian Insider.